Worker

Employer

Anonymised Parties

Receptionist

Public Utilities provider

Representatives

Jay Power               SIPTU

HR

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

IR - SC - 00001532

12/07/2023

This hearing was conducted in person in the Workplace Relations Commission situate in Lansdowne Road, Dublin. In line with the Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021] IESC 24 (delivered on the 6th of April 2021) the hearing was conducted in recognition of the fact that the proceedings constitute the administration of Justice. The hearing was, however, not conducted in public as it concerned a dispute brought under Section 13 of the Industrial Relations Act of 1969.

The Specific Details of the Dispute are outlined in the Workplace Relations Complaint Form which was received by the WRC on the 12th of July 2023.

The Complainant was fully represented by a member of the Union operating in this workplace. I was provided with a comprehensive submission on the 28th day of November 2023. The Complainant additionally relied on the submission outlined in the Workplace Relations Complaint Form. 

The Respondent/Employer had representation at this hearing. Two HR Managers attended the WRC to set out the Respondent’s position. I was provided with hundreds of pages of documents which outlined the Respondents interaction with the Complainant/worker herein. I was also provided with a short submission documenting the history.

No objection was raised in connection with any of the documentary evidence relied upon by the Respondent in the course of making its case.

The Respondent rejects that it is liable to make up the financial shortfall arising out of the Complainant’s medical condition.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.

I have carefully listened to the submissions made by each of the parties herein. I have also heard directly from the Complainant herself.

This was not an acrimonious hearing. I am satisfied that the parties had engaged all along though I sensed that the Complainant found the engagement somewhat lacking for periods of time.

I do not, for one instance, take away from the seriousness of the incident experienced by the Complainant on the 8th of August 2019. The Complainant had been employed by the Respondent for nearly two yeas by August 2019. I accept that the sports facility into which the Complainant had been placed as of July 2019 was in a socially disadvantaged area and that an extra vigilance was required to deal with a sporadic and menacing presence. The Respondent indicated that all health and safety measures that it could take, had been taken. I also accept that the Complainant had already expressed her concerns to her line Manager which compounded her sense of  being let down  when a worst case scenario of violence and threats and intimidation unfolded in the workplace on the 8th of August 2019. These incidents all took place at or close to the reception area wherein the Complainant was working. The Complainant was forced to lock herself in a safe area not knowing whether she would survive the incident.

I accept that the complainant was not physically hurt, but she was threatened by gangs of youths when a gangland-type fight broke out in the premises. The Complainant reacted very badly to this incident. She was extremely shaken and frightened.

The Complainant did not return back to the workplace after this incident. In his oral submission, the Complainant’s representative appeared to be suggesting that the Complainant’s Line Manager gave the Complainant an incorrect steer directly after this incident. He suggests that the Complainant should have been immediately put on some sort of fully paid leave while an alternative placement could be found for the Complainant.

I do not accept this argument. If the Complainant had not reacted badly to the incident in question, she would have been back in her position the next day – which perhaps others of her colleagues might have done. As the complainant was not back to work, she was under an obligation to establish why she was not returning to work. This she did when she presented her Employer with medical certs which disclosed a post-traumatic stress disorder type reaction to the incident. I fully accept that the Complainant reacted badly to this traumatic and stressful event. The best and safest option for her after this incident was extended sick leave. It was her fear and mental anguish that was keeping her from performing her job. The Complainant, it is noted, availed of the sick leave scheme available in the workplace.

I am not persuaded by the Representatives argument that the complainant should not have been out on the sick leave scheme (giving rise to reduced payments) but instead should have been out on fully paid leave arising out of the exceptional circumstances (being described by the Union representative as administrative leave). However, the Complainant representative could not point to a single instance of where such a step has been taken across this workplace and in reaction to a workplace incident of this sort or any sort. He appears to be describing an open-ended fully paid-up holding position. I am mindful of the fact that as an Adjudicator operating under the Industrial Relations umbrella, I must avoid making a recommendation which has a collective impact on a body of workers. Creating a new class of paid leave could lead to open ended targeting and obligation. It is beyond the Adjudicator remit.

In this instance, the Complainant went on a period of extended sick leave which was never questioned while the Complainant was submitting her sick certificates. Everybody accepted that the complainant was sick and not in a position to work.

It is an unfortunate fact that the Covid Pandemic intervened in early 2020 which operated to leave the Complainant’s position unresolved for longer than she might have liked. However, in March 2021 (one year and seven months after the incident) the Complainant was returned (on a staged basis) to an alternative workplace where she was performing the same function. The Complainant was presumably certified fit to return. The return to work was carefully choregraphed by the Complainant, her representative as well as members of the Respondent HR team. Unfortunately, the Complainant did not react well to being in an environment which could potentially leave her exposed to an incident similar to the one previously experienced. The Complainant was no longer happy or confident to interact with the public. The Complainant left this position some six months later in September of 2021 and stayed out on sick leave- again submitting her certs.

The Complainant and her Employer agreed at that time that she should find work in a space that did not involve working with members of the public. This is not necessarily an easy find for a body that provides services to the public and it was not until April of 2022 that the Complainant successfully landed a position as a driver for a specific unit. The Complainant confirms that she has been very happy here since this time.

The Complainant’s representative has sought financial reparation arising out of the financial/remunerative loss caused by having to go out sick. The Complainant representative has suggested that the complainant is at a loss of some €32,000.00. This figure has been flagged without any evidence on how this figure was reached or calculated. I am, in effect, being asked to attribute negligence on the part of the Employer for not foreseeing the incident which gave rise to nervous shock. On the facts provided I cannot reach this conclusion. I have no idea what investigation (if any) was conducted into the incident and what outcome was reached. To my mind, this line of argument is akin to the bringing of a tortious claim, which is something I have no jurisdiction to engage with.

I can understand that the complainant feels very aggrieved that she has paid a significant financial price for the mental anguish caused to her, she says, in the workplace. She feels she actively engaged with her Employer to find alternative employment and that they were slow in taking her situation seriously. I would have to say the extensive communication between employee representative and employer belie this contention.

I am satisfied that the Employer did everything within its power to ensure that the complainant returned to work and did so safely and in accordance with her needs. There was an extraordinary delay – in part due to covid – but also due to the aborted attempt to place the Complainant back in work similar to that she had been engaged in in 2019.

As previously noted, the Complainant was out on paid sick leave for a period of time and was also able to engage in the critical illness policy operated in the workplace. I accept that these sums of money were less than if the Complainant was working but that is how illness benefit operates across every workplace. In fact, many workplaces oblige a worker to go onto social welfare from the start and have no enhanced schemes.

The Respondent acknowledged the Complainant’s plight and indicated a willingness to offer a small ex gratia lump sum which would be offered without prejudice. This has made my final thinking in this matter somewhat easier for me.

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.